FILED 

TN COURI'OF 

ll\ OR.li.':I.RS' CiOMPl.NS.ATION 

<ClAThlS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT NASHVILLE 

Noe Jimenez Morales, 

Employee, 

v. 

Mirage Construction, 

Uninsured Employer, 

And 

Rite Rug Flooring/The Hartford, 

Employer/Carrier, 

And 

NVR, Inc./New Hampshire Ins. Co., 

Employer/Carrier. 

) Docket No. 2016-08-0944 

) 

) 

) State File No. 79028-2015 

) 

) 

) Judge Kenneth M. Switzer 

) 

) 

) 

) 

COMPENSATION HEARING ORDER GRANTING NVR'S 

MOTION FOR SUMMARY JUDGMENT 

This matter came before the Court on May 15, 2017, upon NVR's Motion for 

Summary Judgment. None of the other parties filed opposition to the motion or appeared 

at the hearing, and Counsel for NVR represented to the Court that at the recent, ongoing 

depositions, all opposing Counsel indicated they do not oppose NVR' s motion. For the 

reasons set forth below, the Court holds there is no genuine issue of material fact and 

NVR is entitled to judgment as a matter of law dismissing Mr. Jimenez Morales' claims 

against it and its carrier. 

History of Claim 

Mr. Jimenez Morales filed a Petition for Benefit Determination seeking workers' 

compensation benefits for alleged injuries to his left shoulder, right hip and leg sustained 

on August 12, 2015. NVR's motion revolves around the relationships among the various 

parties in the case and which party held workers' compensation coverage on the alleged 

date of injury. 

1 
According to its statement of facts, NVR is the general contractor. It entered into 

a "'Master Vendor Agreement" with Rite Rug in 20 11 to provide materials and services in 

connection with NVR's homebuilding and other operations. The agreement required Rite 

Rug as the vendor to maintain workers' compensation insurance. A "'Certificate of 

Liability Insurance" provides that Rite Rug obtained coverage for the timeframe during 

which Mr. Jimenez Morales allegedly became injured. 

Rite Rug's Responses to NVR's Request for Admissions indicate that Rite Rug 

admitted it hired Mirage Construction as a subcontractor for the jobsite where Mr. 

Jimenez Morales allegedly suffered his work injury. Rite Rug further admitted there was 

no agreement in place between it and NVR extending NVR's insurance coverage to 

Mirage. Mirage, in tum, admitted it employed Mr. Jimenez Morales on the alleged date 

of injury, but denied having a valid workers' compensation insurance policy on that date. 

Analysis 

Motions for summary judgment are governed by Tennessee Code Annotated 

section 20-16-101 (2016) and Tennessee Rule of Civil Procedure 56. Rule 56.03 requires 

that a motion for summary judgment "be accompanied by a separate concise statement of 

the material facts as to which the moving party contends there is no genuine issue for 

trial." Rule 56.06 additionally states: 

When a motion for summary judgment is made and supported as provided 

in this rule, an adverse party may not rest upon the mere allegations or 

denials of the adverse party's pleading, but his or her response, by 

affidavits or as otherwise provided in this rule, must set forth specific facts 

showing that there is a genuine issue for trial. If the adverse party does not 

so respond, summary judgment, if appropriate, shall be entered against the 

adverse party. 

(Emphasis added). The Court of Workers' Compensation Claims Practices and 

Procedures Rule 4.01B states with regard to dispositive motions that, "If no opposition is 

filed, the dispositive motion will be considered unopposed." Further, the Court of 

Appeals affirmed a trial court's grant of summary judgment where the non-moving party 

failed to file a response. Williams v. Little, No. M2008-021 05-COA-R3-CV, 2009 Tenn. 

App. LEXIS 703, at *6 (Tenn. Ct. App. Oct. 20, 2009). Here, none of the other parties 

opposed NVR's motion. However, per Rule 56, the Court must nonetheless determine if 

summary judgment is appropriate. 

To make this determination, aside from Rule 56, in 2011, the Court must also 

consider the burden of proof applicable to a motion for summary judgment filed by a 

party who does not bear the burden of proof at trial: 

2 
In motions for summary judgment in any civil action in Tennessee, the 

moving party who does not bear the burden of proof at trial shall prevail on 

its motion for summary judgment if it: 

(1) Submits affirmative evidence that negates an essential 

element of the nonmoving party's claim; or 

(2) Demonstrates to the court that the nonmoving party's 

evidence is insufficient to establish an essential element 

of the nonmoving party's claim. 

Tenn. Code Ann. § 20-16-101 (2016); Payne v. D and D Elec., 2016 TN Wrk. Comp. 

App. Bd. LEXIS 21, at *7-8 (May 4, 2016). IfNVR, as the moving party, satisfies its 

burden, then the remaining, nonmoving parties must "demonstrate the existence of 

specific facts in the record which could lead a rational trier of fact to find in [their] 

favor[.]" Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 

2015). 

NVR relies on Tennessee Code Annotated section 50-6-113(a) (2016), which 

provides that a "principal contractor, intermediate contractor or subcontractor shall be 

liable for compensation to any employee injured while in the employ of any of the 

subcontractors of the principal contractor, intermediate contractor or subcontractor and 

engaged upon the subject matter of the contract to the same extent as the immediate 

employer." Further, "Every claim for compensation under this section shall be in the first 

instance presented to and instituted against the immediate employer[.]" !d. at § 50-6-

113(c). 

In Murray v. Goodyear Tire & Rubber Co., the Supreme Court explained the 

policy underpinning the statutory employer provision as follows: 

In essence, the Act creates "statutory employers" in situations where 

injured workers are unable to recover compensation from their immediate 

employers. The purpose of this provision is to protect employees of 

irresponsible and uninsured subcontractors by imposing ultimate liability 

on the presumably responsible principal contractor, who has it within his 

power, in choosing subcontractors, to pass upon their responsibility and 

insist upon appropriate compensation for their workers. Moreover, the 

statute prevents principal contractors from contracting out work to prevent 

liability by giving the claimant the right to recover from the principal 

contractor as a statutory employer if the immediate employer cannot pay. 

46 S.W.3d 171, 175 (Tenn. 2001)(Internal citations omitted). 

3 
Here, it is undisputed that: Mirage employed Mr. Jimenez Morales; Mirage is 

uninsured; and Rite Rug engaged Mirage as a subcontractor. Mr. Jimenez Morales may 

first look to the immediate employer, Mirage, to seek recovery. Mirage is uninsured. 

Mr. Morales next looks to Rite Rug. Rite Rug admits it hired Mirage as a subcontractor 

and admits that it (Rite Rug) has workers' compensation coverage. Mr. Morales need riot 

look higher up the chain to the general contractor. The Court finds summary judgment is 

appropriate. 

IT IS, THEREFORE, ORDERED AS FOLLOWS: 

1. NVR's motion for summary judgment is granted and NVR and its carrier are 

dismissed with prejudice from this action. 

2. The matter is set for a status conference on June 5, 2017, at 1:45 p.m. Central 

Time. The hearing will take place via telephone with Judge Kenneth M. 

Switzer. You must dial 615-532-9552 or 866-943-0025 toll-free to 

participate. 

ENTERED this the 16th day ofMay, 2017. 

4 
CERTIFICATE OF SERVICE 

I certifY that a true and correct copy of this Order was sent to the following 

recipients by the following methods of service on this the 16th day of May, 2017. 

Name Certified Via Via Service sent to: 

Mail Fax Email 

Zachary Wiley, X zwiley@forthegeoQle.com 

Employee's attorney 

Nathan Colburn, X colburnlaw@gmail.com 

attorney for Mirage 

Tamara Gauldin, X Tamara. gauldin@thehartford. com 

attorney for Rite 

Rug/The Hartford 

Stephanie Rockwell, X Steghanie@s:geed-seta. com; 

Alex Adkins, attorneys alex@sgedd-seta.com 

forNRV/New 

Hampshire Ins. Co. 

Court of rkers' 

&;~ Compensation Claims 

WC.CourtClerk@tn.gov 

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